Photography in Italian law: an overview of author’s right, image rights and privacy
In a world where communication is mainly based on images, knowing precisely which rights are applicable to photographs becomes essential.
In this article we will propose an overview of the legal principles in force in the Italian legal system on photographs, considering both the scope of copyright and the scope of the protection of the privacy of the persons portrayed. We will deepen the distinction (characteristic of Italian law) between photographic work and simple photograph with the related legal consequences for both authors and users and we will deal with some particular cases of free use of images in the educational and scientific fields.
Introduction
In this article we will try to provide a synoptic framework of the rules on intellectual property in the photographic field in the Italian context (making some reference also to the privacy legislation), a context that denotes some interesting peculiarities and which is more complicated than other European contexts.
The main source of legislation for this matter is Law no. 633 of 22 April 1941 (hereinafter mentioned as L. 633/1941)[1], that is the Italian law on copyright approved in 1941 and amended several times in light of the European directives that appeared from the 1990s onwards.
As a terminological clarification, it should be noted that, although the Italian legal system speaks more properly of “diritto d’autore” (literally, “author’s right”), in this article we will generically use also the Anglo-Saxon expression “copyright”, which however is semantically different and comes from a different historical matrix.
For a complete overview of the basic legal principles in the field of photography according to Italian law, we must take into consideration which subjects are involved and which rights the legislation grants them. On the one hand, we have the rights of those who have taken a photograph, and, on the other, we have the persons who have been photographed. We will conduct our analysis by following this distinction.
1. The rights of those who take photographs
In the field of photography, the Italian copyright legislation differs from the legislation of other countries in one particular issue. The law makes a basic distinction between “simple photograph” (Italian “fotografia semplice”) and “photographic work” (Italian “opera fotografica”) — a photographic work with a creative nature.
The Italian copyright law defines the photographic work as the result of an individual intellectual creation in the full sense, and it is fully protected by copyright; this means that the moral rights are granted to the author as well as rights of economic exploitation (which are valid until 70 years after the author’s death).
On the other hand, “simple photograph” does not have a creative nature but only documentary nature. As a consequence, simple photography is only protected by a neighbouring right, which does not last that long — only 20 years after taking the photograph (see art. 92 L. 633/1941) — and does not grant the author’s moral rights.
1.1. Definition of “simple photograph” in the Italian law
In order to better understand the differences between the two categories of photography, we must look to Article 87, Paragraph 1 of the Italian Copyright Law (L. 633/1941). This section defines “simple photograph” as follows:
“For the purpose of applying the provisions of this chapter, photographs are images of persons or of life’s aspects, elements and events of life, both in nature and society, produced through a photographic procedure or similar process; this also includes the reproduction of works of the visual arts and photograms from film stripes.”
Paragraph 2 of this section makes clear that mere reproductions (images) of writings, documents, commercial papers, material objects, technical drawings and similar products are not part of the photographs defined here and therefore not covered by protection (at all). According to this, the Italian Copyright Law does not protect simple digitalisation of writings and documents, because they do not have a creative or a documentary added value.
1.2. The Italian specific regulation on “simple photographs”
In order to better understand the differences between the two categories of photography, we must look to Article 87, Paragraph 1 of the Italian Copyright Law (L. 633/1941). This section defines “simple photograph” as follows:
“For the purpose of applying the provisions of this chapter, photographs are images of persons or of life’s aspects, elements and events of life, both in nature and society, obtained by the photographic process or by an analogous process.”
The articles following art. 87 contain further “exceptions” and special provisions that apply to simple, non-creative photographs. This kind of photographs is less protected than creative photographic works, which enjoy the full protection of copyright. For example, art. 88 states that the employer or client has the exclusive rights for photographs taken in the context of an employment relationship or as commissioned work — unless otherwise provided in the contract.
Art. 90 establishes that the specimens[2] of the photograph must bear the following indications: the name of the photographer, or of the company on which the photographer depends, or of the client; the date of the production year of the photograph; the name of the author of the visual artwork photographed. If the specimens do not bear such indications, their reproduction is not considered abusive and no compensation is due, except in the case in which the photographer demonstrates the bad faith of the one who reproduces.
In the end, according to art. 91, the reproduction of photographs in anthologies for school use and in general in scientific or educational works is lawful, upon payment of a fair fee. In any case, the name of the photographer and the date of the year of manufacture must be indicated in the reproduction (if this information results from the photograph reproduced). Even the reproduction of photographs published in newspapers or other periodical publications, concerning people or current news or facts of public interest, is lawful against payment of a fair compensation.
1.3. How can we distinguish a “simple photograph” from a “creative photographic work”?
How do we determine whether a photograph has a creative character or not? Who has the final authority? The answer to these questions is easy to understand for someone with a legal background, but it can cause confusion among those not from the field. Law is not a perfect science and that is why we cannot determine a priori and with absolute certainty when a photograph is a “simple photograph” or a “photographic work”.
It is the judge who would have the final say in a dispute in court regarding copyright infringements. In this case, the judge and the parties to the dispute rely on experts from the fields of photography, art history and design appointed to determine the creative degree of a photograph. In the absence of a judicial decision, we can only proceed by assumptions, referring to the indications provided over the decades by previous judicial decisions and legal doctrine (i.e. the articles and opinions of experts and scholars).
The matter is highly complex and difficult to outline in a few words; but, to better understand, we can quote the following statement by professor Ubertazzi[3], editor of the most authoritative commentary on Italian copyright law:
“Creativity is characterised by the originality of the image detail, the image composition, the photographer’s ability to create a particular effect that goes beyond the reality depicted. These features characterise the personal style of the author.”
It is not about — as one might assume — the photographer’s technical expertise or his/her skills.
“Even non-creative photographs can be professionally designed regarding the choice of image detail and the ability to effectively capture what is depicted — but without reaching the level of an original and personal interpretation by the author.”
However, there are also cases where there is no doubt that the photo cannot be a “photographic work.” A typical example is photographs generated by an automated system such as aerial photographs, which are used to document geographical areas and to produce maps. In that case, the less creative the photos are, the better, since their purpose is to reproduce reality in a slavish way. Another fairly classic example in which the requirement of a creative nature is undoubtedly missing is that of photos taken to document archaeological excavations or the evolution of a construction site or the dynamics of a road accident.
2. The rights of the people portrayed in the image
The people portrayed in the images have both a personality right, laid down in Article 10 of the Italian Civil Code and a neighbouring right, regulated in Articles 96, 97 and 98 of L. 633/1941. Furthermore, this particular type of photographs also triggers privacy problems, unless particular exceptions come into play so as to attribute a particular public interest to the diffusion of the image (Mezzasoma 2013).
2.1. The neighbouring right in Articles 96, 97 and 98
The law states the general principle that the use of an image is subject to the consent of the person depicted; subsequently, in Article 97 it indicates some exceptions:
“The consent of the person depicted is not required if the reproduction of the image is justified on the grounds of the prominence or the public office held, judicial or police requirements, scientific, didactic or cultural purposes. This is valid even where the depiction is connected to events or functions which are of public interest or which have taken place in public.”
However, even in such cases, the photograph cannot be published if the honour, the dignity or decency of the person depicted are harmed.
On the other hand, in all other cases, the consent of the person depicted is require in order to publish the photograph. This can be contractually regulated and money can also be requested for that. Let us think about certain professional categories, such as models or testimonials in advertising campaigns, who earn money by transferring the right to use their own image.
2.2. The image of a person as personal data
In some cases, photographs may also be considered “personal data” and therefore require the precautions envisaged in case of data processing.
We can understand this by reading the definition of personal data provided by Article 4 of the GDPR (the current European regulation on the protection of personal data)[4] which also includes “one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of a natural person”.
In fact, from a photograph, in addition to the somatic traits itself, a whole series of information relating to the person can be deduced, such as his ethnicity (think of the color of his skin), or his religion (think of people who are portrayed wearing various types of religious symbols as well as particular headdresses, clothes, accessories), or even his state of health (think of people who report mutilations, impairments, scars, evident signs of therapy or surgery).
In this sense, the Italian Supreme Court (Corte di Cassazione) also expressed itself with decision no. 17440 of 2 September 2015[5], which reads:
“the image of a person constitutes personal data […], since it is immediately suitable for identifying a person regardless of his or her reputation, so that the installation of a video surveillance system inside a commercial establishment, in order to control the access by patrons, constitutes the processing of personal data and must be the subject of the information […] addressed to those entering the premises.”
In addition to this, however, we must also report the clarification found in Whereas no. 51 of the GDPR:
“The processing of photographs should not systematically be considered to be processing of special categories of personal data as they are covered by the definition of biometric data only when processed through a specific technical means allowing the unique identification or authentication of a natural person.”
One of the main problems arising from the overlap between privacy rules and copyright rules is the different configuration of the concept of “consent”. If the copyright law also admits the possibility of implicit consent, the privacy legislation is instead quite clear in requiring that consent be explicit and aware; more precisely, using the words of Whereas no. 32 of the GDPR, “consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication”.
2.3. If the person depicted is a minor
If the person depicted is a minor, it is advisable to take into account some other recommendations related to the protection of minors and in general of fragile and disadvantaged people. To this end, the rules of conduct and professional ethics of journalists are also of considerable importance, such as those contained in the so-called Carta di Treviso, a protocol signed on 5 October 1990 by the Italian Professional Order of Journalists, the National Federation of the Italian Press and Telefono Azzurro Association with the aim of regulating the relationship between information and childhood.
The rules contained in the Treviso Charter have a mostly deontological nature and on the one hand safeguard the right to report, on the other hand they highlight the responsibility that all the media have in pursuing full respect for the image of children and adolescents, even when involved in much discussed and well-known news events or legal disputes. Among these rules, one requires journalists to avoid publishing any element that could lead to the identification of a minor involved in legal proceedings, be it a data (details of parents, home address, school, etc.) be it a photograph or a video.
3. The controversial case of the “degraded” images of art. 70
This article is one of the so-called copyright exceptions, those “free zones” in which, ideally, the rights of authors and content producers take a step back in favour of the rights of users, upon the occurrence of certain conditions and well specified by law.
Paragraph 1-bis was introduced in 2007 following the spread of the Internet as a mass phenomenon and in the light of some legal disputes that had seen public school teachers as protagonists who had made some copyrighted educational materials freely available on the Internet.
According to paragraph 1-bis, therefore, “the free publication through the internet of low resolution or degraded images and music” is allowed, provided that this publication is free of charge, for educational or scientific use and without a purpose for profit. It is important to pay attention to all the conditions listed and to verify that all are present before proceeding with the publication.
The choice of using the terms “low resolution” and “degraded” was harshly criticised from the outset, since they are two concepts that are too vague and too relative. A clarifying indication should have come from a decree implementing this rule, but this decree has never seen the light. For this reason, the interpretation and applicability of the rule still remain controversial.
In any case, we suggest accepting this paragraph with a positive attitude, since, despite the inappropriate wording and the lack of the implementing decree, it represents a useful (albeit limited) window of freedom for users.
Notes
[1] A complete and quite up to date text of the law is available here https://www.dirittodautore.it/legge-22-aprile-1941-n-633/.
[2] Italian “esemplari”.
[3] Ubertazzi, L.C. (editor) (2012). Commentario breve alle leggi su proprietà intellettuale e concorrenza, CEDAM, Padova.
[4] Regulation no. 679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). Full text available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016R0679.
[5] Full text of the decision is available at https://www.dimt.it/news/45videosorveglianza-in-esercizio-commerciale-cassazione-sussiste-obbligo-di-informativa-il-testo-della-sentenza/.
